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WPIX v ivi injunction

WPIX v ivi injunction

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Published by Eric Goldman

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Published by: Eric Goldman on Feb 22, 2011
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11/16/2011

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The next consideration is a balance of hardships between

plaintiffs and defendants. Plaintiffs, as addressed above, have

adequately identified the hardships they will face without an

injunction. ivi, on the other hand, argues that an injunction

would be “catastrophic” and would “effectively put ivi out of

business, most likely permanently.” Defs.’ Opp’n at 5.

While it is a practical hardship for ivi to go out of

business, it is not a legally recognized harm. It is axiomatic

that an infringer of copyright cannot complain about the loss of

ability to offer its infringing product. Warner Bros. Entm’t

Inc. v. RDR Books, 575 F.Supp.2d 513, 553 (S.D.N.Y. 2008)

(citing My-T Fine Corp. v. Samuels, 69 F.2d 76, 78 (2d Cir.

1934) (Hand, J.); Concrete Mach. Co. v. Classic Lawn Ornaments,

843 F.2d 600, 612 (1st Cir. 1988); Apple Computer Inc. v.

Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983).

Case 1:10-cv-07415-NRB Document 35 Filed 02/22/11 Page 55 of 59

56

Having found that ivi has infringed plaintiffs’ copyrights, it

follows that ivi is not legally harmed by the fact that it

cannot continue streaming plaintiffs’ programming, even if this

ultimately puts ivi out of business.

We note that defendants are placed in the uncomfortable

position of having to argue that they will suffer immense

hardship as a result of an injunction because their use of

plaintiffs’ programming is popular, and that without the

plaintiffs’ programming there will not be enough demand for

ivi’s service. Essentially, defendants argue that the difference

between profitability and bankruptcy is the ability to

retransmit plaintiffs’ programming. This argument underscores

the threat ivi poses to the plaintiffs. ivi’s popularity means

that viewers who would otherwise access plaintiffs’ works

through legal means can now access them through ivi. Such

unsanctioned use is precisely the harm that the copyright laws

seek to avoid, subject to the limited situations where a work

can claim to be a fair use, seek refuge in a compulsory license,

or find some other limited defense to the copyright laws.

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